Adrian Vargas Cervantes v. Eric Holder, Jr.
Opinion
Opinion
Bybee, J.
Adrian Vargas Cervantes (“Vargas”) petitions for review of a final order of removal. The Board of Immigration Appeals (“BIA”) found Vargas inadmissible under 8 U.S.C. § 1182 (a)(2)(A)(i)(I), and ineligible for an exception under § 1182(a)(2)(A)(ii), because it found that Vargas was convicted of two crimes involving moral turpitude (“CIMTs”) — spousal abuse under California Penal Code § 273.5(a) and threatening to commit a crime resulting in death or great bodily injury under California Penal Code § 422. The BIA also determined that Vargas was ineligible for an extreme hardship waiver, applying its decision in In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008). We hold that although the BIA correctly concluded that Vargas’s conviction under § 422 is a CIMT, the BIA erred in concluding that Vargas was convicted of spousal abuse under § 273.5(a) by looking to evidence outside the record of conviction. We also conclude that the BIA’s decision in Rotimi is entitled to deference, and therefore hold that the BIA correctly found Vargas ineligible for an extreme hardship waiver. We grant the petition and remand for further proceedings.